*1 Reports-. 644 77 398, 349, 152; Bush Texas Crim. Rep., W. v. Rep., S. State, 15 348; Parks v. S. Rep., W. for the State. Appellants were indictment convicted under an HARPER, Judge. five years- assessed at charging robbery, punishment with the penitentiary. this court Since said this case was conviction, and while pending made on file appeal, appellant affidavits appear by dis- has from The State’s motion to custody. Samual Rosas escaped therefore, sustained, is, miss the as to said appellant appeal Rosas. cause to said Samual dismissed There are no record. The special charges bills of exception all the evidence were if given, consequently requested by appellant Acosta must as to Jesus sustains the verdict the two agreed Estrada testified appellants Margarito him into a drew room, him the to a barber carried shop; so told to hold his hands when he a on him him up razor did his This made money. went and took through pockets evidently did believe testimony, believed is not se that a razor We per deadly weapon. contends Appellant believe that all mankind know that are inclined to death can be in- man. rate, in the hands of a At grown a razor flicted any assessed, but five years death penalty adjudged. If indictment deadly be held to be a weapon, razor should made an unlawful assault on Estrada Margarito appellants the said Estrada fear of and bodily violence life put and by the verdict. the evidence supports injury, as to Acosta, is affirmed Jesus dis- The Rosas. as to missed Samual Alfonso Munoz The State. October

No. 3703. Decided Jury—Affidavit—Practice Appeal. Burglary—Misconduct claimed, Where, upon trial of after conviction in alluding misconduct to one of the his motion motion was not by any but sworn to failure to defendants’ and separate motion, matter was not attached to as to but bore mark, and it was shown that file and distinct affidavit had evidence, may not have been called to Davidson, Judge, dissenting. was no reversible'error. judge, there Paso. Court of El Tried below before the District from Appeal Howe. D. Hon. W. burglary; a conviction of penalty, years imprison- from Appeal in the penitentiary. ment v. The Obnelas Munoz State.

1915.] states case. on file No brief for appellant. *2 for the State.

Cited Richardsonv. Appellants were- convicted of

DAVIDSON, Judge. in at the years penitentiary assessed punishment being . excep of without statement of facts or bill record is before us June, alleg the of tions. A motion new trial was filed on 5th for day. evidence, and was con that the by the verdict was ing supported the and evidence as submitted to On jury. to the the trary law June It to filed. unnecessary an amended motion for new trial was is as follows: “Because notice the The second ground. first ground the to their room the after had retired received jury never to the that Ornelas .their discussed fact verdict, behalf, that as a circumstance show- testified in his own and considered June day, of the herein.” On the same the defendants ing guilt authority undersigned “Before me the the affidavit was filed: following who, by after Davenport, this Luther day personally being appeared tried me that that he was a Gabino deposes says juror sworn and duly to the Munoz, and Alfonzo that the had retired jury Ornelas and said the in cases one of the room to consider evidence jury jurors the that de- the mentioned fact the the discussion evidence during of case fendant in either in his own behalf testify Ornelas did said that his the of Munoz and failure to so or in behalf to the of de- tended the guilt was a which circumstance members of the fact discussed different fendants, jury by the verdict herein. (Signed) in rendering and was considered by Luther Davenport.” and 21st. On

This was filed June the same to properly “On 21st, the court this this came judgment: day June entered day, .defendants, Ornelas and Gabino Alfonzo to be heard the motion and and new grant aside the verdict him a judgment set Munoz, cause, Ornelas and defendants, the said Alfonzo of this in and the court court, heard having Munoz, being present advised in fully premises, and is of being motion read said ordered,” be overruled. It is therefore that the same should opinion that this be reversed. opinion judgment The writer is etc. is the uncontroverted, and the" record only thing affidavit is This the failure discussion on the bearing question are-of the that as this opinion brethren testify. My defendant to trial, to in new or made an for not referred that, not have it therefore, may called to it explicitly, exhibit that before could take of the trial judge, the attention in some that it was appear it must affirmatively advantage this condition of to the called Beports. hold In con- judgment ought view of their affirmed, clusion about the matter the writer will be -but for believes inasmuch it the motion specifically alleged in that the discussed the failure of same was filed the was the motion day it, overruled 'that same this is sufficient day evidence the fact that it he attention, was called to was aware of existence as trial. There its of the motion for new it, very know indicate the court did not nothing may be presumed, conclusion, reasonably my just this affidavit been filed after of the court on had the action record would have shown The district him, let would not have sort attorney anything of this certainly pass June, as the court until adjourn 26th of especially five trial. days after the of the motion for new But to the obedience entered the order will be majority judgment. affirming *3 Judge.

HARPER, I agreeto the affirmance because the motion no referred to person. not attached to nor made nor exhibit to portion but bears distinct file and I separate marks, aye do think it as the motion. we authorized The order the motion evidences no evidence or of the motion. hearing

Eustacio Galvan The State. No. 3732. Decided October 1915. —Murder—Continuance—Impeaching 1. Testimony—Rule Stated. testimony The rule is that absent witness could where witness, impeach available to is to be State’s who á continuance be Following refused. Garrett v. Crim. Rep., 198, and other eases. 2.—Same—Evidence—Husband and Wife. against Where the record on testified showed the woman who wife, untenable objection not his that account is was an —Same—Indictment—Changes and Erasures—Alteration—Witnesses Indictment. inspection, court for original indictment is not sent Where every complaint that it had been copy regular respect, specific allegations and affidavits attached changed, in absence Besides, placing no reversible error. there indictment, its return into back names witnesses on an alteration. —Same—Charge Court—Objections. objections exceptions thereto in absence of In the considered. trial can be motion for